VB7-03088

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File / Dossier de la SAR : VB7-03088 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision May 23, 2018 Date de la décision Panel Richard Jackson Tribunal Counsel for the person(s) who is(are) the subject of the appeal Mojdeh Shahriari Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons for allowing the appeal of M. XXXX XXXX, a.k.a. XXXX XXXX (appellant) of XXXX from a decision of the Refugee Protection Division (RPD) to reject his claim for refugee protection. The appellant claims to face persecution, a danger of torture, a risk to life or a risk of cruel and unusual treatment if he returns to XXXX. [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA or Act),1 the Refugee Appeal Division (RAD) allows the appeal and refers the matter to the RPD for redetermination by a differently constituted panel. [3] The determinative issue in this case is whether the RPD has erred in its credibility findings. BACKGROUND [4] The 22-year-old appellant is a dual citizen of Afghanistan and Tajikistan. He was resettled in XXXX with his parents when he was a child. After visiting XXXX from China where he was studying, the appellant fell in love with a childhood friend XXXX. They remained in contact via the phone and internet while the appellant continued his studies making occasional visits. However, XXXX is the granddaughter of the President of the country and neither her parents nor the appellant's parents approved of the relationship which was outside cultural norms. [5] In XXXX 2016 the appellant was attacked and threatened by XXXX brother and others which resulted in him sustaining serious injuries requiring medical treatment. He went to India with his mother to support her and to receive further medical treatment for these injuries. After pressure from his family the appellant stopped communicating with XXXX. In XXXX 2016 the appellant was tricked into a meeting with XXXX father believing that he would be meeting her in a park. Her father threatened to kill the appellant and deport his parents back to Afghanistan unless he left the country. [6] The appellant obtained a visa for the USA but when he learned about the lengthy process he would need to go through in the USA he crossed the border to Canada in February 2017. He made a refugee claim while in detention in Canada. His refugee claim was rejected by the RPD on May 26, 2017. RPD FINDINGS [7] Because of unresolved discrepancies in the appellant's testimony the RPD found that the appellant had not provided a credible account of his relationship with XXXX which is the central allegation of his claim. APPELLANT'S ARGUMENTS [8] The appellant argues that the RPD's credibility assessment is flawed and its analysis is microscopic. The appellant also argues that the RPD dismissed or ignored the totality of the evidence that was supportive of the appellant's refugee claim. NEW EVIDENCE AND ORAL HEARING [9] The appellant submits new evidence that he would like me to consider. The new evidence consists of a string of emails between the appellant and XXXX subsequent to the RPD hearing and a letter from the appellant's father in XXXX. [10] For reasons set out below, I have allowed this appeal. I have reviewed the new evidence and I do not find that these emails, combined with the confusing questioning and the RPD record, are sufficient for me to substitute a decision in this matter. It is unnecessary in these circumstances to further consider or admit the appellant's proposed new evidence. The appellant may, of course, submit this evidence to the RPD, in accordance with that Division's rules, prior to the re-hearing of his refugee claim. [11] Since I am not considering the new evidence under section 104(4) of the Act, there is no need for me to consider whether to conduct an oral hearing under section 106(6) of the Act. RAD ANALYSIS The RPD's credibility assessment [12] The appellant argues that at the hearing the RPD focused on microscopic minor inconsistencies peripheral to the central part of the claim and questioned the appellant in a confusing maner. [13] In my review of the transcript I concur with the appellant that in this instance the RPD has focused on the precision of dates and in some cases the questions were confusing to the appellant. For example when the RPD asked the appellant when he was last in "direct communication" with XXXX there was considerable confusion about whether or not this term meant face to face communications and the RPD member acknowledged that the questions were confusing.2 However, when the RPD analysed these exchanges it concluded that, "The claimant [appellant] was also unsure about when and how he and XXXX were last in touch. He provided three inconsistent accounts of their last communication."3 [14] Similarly, after posing questions about the apppellant's visit with XXXX in XXXX 2015 to celebrate her birthday,4 the RPD draws the conclusion that because his passport shows him entering XXXX after the actual date of her birthday that the appellant was unable to explain how this visit could have taken place. However, the RPD did not clarify whether the appellant was there for her actual birthday or simply to celebrate her birthday which is set out in the following exhange: RPD: So your passport stamps say you came back on the XXXX of XXXX 2015. Her birthday was on the XXXX of XXXX 2015. So how could you have been there for her birthday? Appellant: It was on May her birthday so I have - I was -been there on May. RPD: Her birthday was the XXXX of XXXX, 2015. Right? Appellant: Yes. RPD: Your passport says you returned to XXXX on the XXXX of XXXX, 2015. You told me you were there for her birthday and you celebrated it with her so how is that possible? Appellant: (No audible response). [15] I find the RPD has erred in posing confusing questions and reaching conclusions that are not clearly supported in the evidence. Consideration of material evidence [16] In light of the contradictions and inconsistencies noted earlier in its reasons the RPD concluded that the appellant lacked overall credibility and it did not believe his story. In light of that conclusion, the RPD granted no probative value to the medical documents or photos submitted. In the circumstances particular to this case, I do not agree with those conclusions. As previously mentioned, I am of the opinion that several of the RPD's conclusions that form the basis of the finding of a lack of credibility are insufficiently supported by the evidence. [17] Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made, and allow the reviewing court to assess the validity of the decision.5 [18] The RPD in paragraph 18 and 20 of the Reasons and Decision does not give adequate reasons why it did not accept the documentary evidence before it, as submitted by the appellant. I do not find the RPD has provided adequate or fulsome reasons about why it rejected the photos and medical documents which are material to the appellant's claim of XXXX relationship with him and with the President of XXXX and the serious assault the appellant alleges he had at the hands of her brother. [19] I note that credibility was and remains a key issue in the appellant's refugee claim. In addition to the unsupportable conclusions of the RPD and the lack of adequate reasons as discussed above, there remain credibility concerns raised by the appellant. The RPD has not undertaken an analysis of the country conditions in XXXX nor has it considered the future risks to the appellant, which would be necessary if the appellant is found to be credible. A I noted above, I do not find that there is sufficient evidence on the record or in the proposed new evidence for me to substitute my decision for that of the RPD in this case. CONCLUSION [20] Pursuant to section 111(1)(c) of IRPA, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. I also recommend that the appellant fully utilize the services of an interpreter at his RPD hearing. This appeal is allowed. (signed) "Richard Jackson" Richard Jackson May 23, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Appellant's Record (AR), Transcript of Refugee Protection Division (RPD) Hearing, p. 56. 3 RPD Member's Decision, para 12. 4 AR, Transcript of RPD Hearing, pp. 56-57. 5 Lake v. Canada (Minister of Justice), 2008 SC 23, at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); and, Triana Aguirre v Canada (Citizenship and Immigration), 2008 FC 571. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB7-03088 RAD.25.02 (March 7, 2018) Disponible en français